Zbornik Radova Pravnog Fakulteta u Splitu (Jan 2006)
JUDICIARY CONTROL OF THE EXECUTIVE IN EMERGENCY IN USA - THE CASE OF CAPTIVES IN GUANTANAMO
Abstract
The control of the Executive in emergency, that is of their actions and measures undertaken in such a case represents one of the most important constitutional and legal problems, primariry as in such a case the main values of the rale of law are challenged as well as the fundamental constitutional guarantees to the human rights. The majority of the contemporary constitutional democratic states, due to possible risks and perils to democracy and to the rale of law in the state of emergency, has established some controlling mechanisms in order to prevent or to diminish significantly anticonstitutional violants as well as illegal encroachments by the state of emergency titulars particularly referring to fundamental human rights. Since the terrorist attack on USA in 2001. the American Executive, after Congress having proclaimed the state of emergency, have undertaken in their struggle against international terrorism a series of measures and actions, in particular those referring to the treatment of the prisoners, suspected of terrorism and arrested in Afganistan that have aroused the attention of the democratic public opinion. The author in his essay to establish, based upon an analysis of the USA Suprema Court decisions in cases of Rasul v. Bush, Hamdi v. Rumsfeld and Rumsfeldv. Padilla, how in practice functions and how far goes the judiciary control of the executive in USA in emergency in the field of protection of human rights as well as to detect and describe the legal effects and range of such judiciary decisions upon further behaviour of the state of emergency titular to persons arrested in antiterrorism operations outside the USA territory, but held in captivitv in American militarv bases.
